Judge dismisses part of lawsuit involving former Astros pitcher Brandon Backe

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by Chris Paschenko / The Daily News

khou.com

Posted on April 6, 2011 at 10:36 AM

Updated Wednesday, Apr 6 at 2:48 PM

GALVESTON, Texas — A federal court judge dismissed part of a lawsuit accusing Galveston police officers of brutality at a post-wedding reception at an upscale Galveston resort bar.

Brandon Backe, a former Houston Astros pitcher, and 11 others claimed they were victims of brutal beatings and other excessive force by as many as 36 officers who responded to a disturbance at the San Luis Resort’s H2O bar Oct. 5, 2008.

Police Chief Charles Wiley, who was named in the lawsuit, has denied officers used excessive force. He disciplined 13 officers associated with the case for paperwork failures. None was disciplined for violating the department’s use-of-force policies.

Judge Kenneth M. Hoyt, in an order filed March 29, granted the defendant’s motion to dismiss part of the lawsuit pertaining to 18 city employees in their official capacities.

Hoyt refused, however, to dismiss the entire lawsuit and allowed claims against the city to continue. The plaintiffs’ claims against the city employees were duplicative of the claims asserted directly against the city, the dismissal order states.

The lawsuit, filed Sept. 24, 2010, in U.S. District Court of the Southern District of Texas, named 16 officers, 20 "John Doe" officers, their supervisors and City Manager Steve LeBlanc in both their individual and official capacities.

‘Brutal Conduct’ Alleged

Twelve plaintiffs, including Backe, were among guests at an Oct. 4, 2008, wedding and reception at the Galveston Island Convention Center. Many guests went to The San Luis afterward.

The wedding and reception were exempted from the city’s curfew, which was still in place after Hurricane Ike’s Sept. 13, 2008, landfall. Ike caused widespread flooding and damaged much of the Upper Texas Coast.

The plaintiffs claimed the Galveston Police Department has "a long and documented history of using excessive force, making false arrests and engaging in brutal conduct that the city defendants knew or should have known of this pattern of conduct."

The plaintiffs further claimed police used excessive force and violated their Fourth Amendment rights by subjecting them to unreasonable searches and seizures.

The defendants were deliberately indifferent in allowing a policy or custom of police brutality and excessive force to exist, the lawsuit claims. The defendants are liable for failure to properly hire, train and supervise police, the lawsuit claims.

The plaintiffs claim police confronted Cole O’Balle, a minor, near the H2O bar after he walked through on his way to change clothes in his room.

Officers ‘Swarmed’ Bar

Security guards and a Galveston police officer ordered O’Balle to come with them. Police accused O’Balle of being intoxicated and of instigating the matter.

Family and friends of O’Balle questioned the officer, who called for backup, removed his baton and said he was arresting O’Balle.

About 20 officers "swarmed" the bar area and "participated in a vicious attack on members of the wedding party," and bar patrons who were not part of the post-wedding reception, the lawsuit claims.

Police are accused of using pepper spray on the plaintiffs and of beating them with batons, kicking them and using stun guns on them.

13 Arrested

Thirteen people were arrested the morning of Oct. 5, 2008, including O’Balle, the brother of the bride. A grand jury dismissed five felony charges against him, including assault of a public servant.

It authorized a misdemeanor resisting arrest charge. O’Balle pleaded guilty Sept. 13, 2010, to a public intoxication charge in a plea agreement, the final criminal case to be adjudicated.

Backe and two others received deferred adjudication Sept. 1, 2010, in exchange for pleading no contest to misdemeanor charges of disorderly conduct. A city prosecutor dropped charges of interfering with police.

The original complaint was sealed in November in a move unopposed by the plaintiffs because it contained the defendant’s home addresses.

This story was brought to you thanks to khou.com’s partnership with The Galveston County Daily News.

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